You must comply with a new law that was just passed, but doing so means you are probably violating one of our patents. So you might as well pay up now.
This is essentially what a demand letter sent by MyMedicalRecords, Inc., an electronic health records provider with numerous broad patents, could have said in its letter to a youth treatment center in Oakland.1 We received this letter on Trolling Effects in December 2013. It falls in the category of threats from patent holders who decide to go after companies for abiding by new rules or regulations—doing so, they allege, infringes one or more of their patents.
Late last month, Judge Otis Wright of the Central District of California invalidated five claims in one of MyMedicalRecords’ patents in a case involving Walgreens, Quest Diagnostics, WebMD, and more. Wright’s decision [PDF] is one of many new cases that have implemented the Supreme Court’s recent ruling in Alice v. CLS Bank, a groundbreaking decision that basically says: you can’t make an abstract idea patentable by simply adding “do it on a computer.”
In the case, MyMedicalRecords asserted a patent that covered a method of providing online personal health records in a private, secure way. Wright rightfully found that “the concept of secure record access and management, in the context of personal health records or not, is an age-old idea,” and is therefore abstract.
Now, according to the “Mayo test” that Alice deemed courts should use, an abstract concept could be patentable if it’s associated with some sort of “inventive concept” that goes beyond just the abstract idea. In the case of MyMedicalRecords’ patent, though, the additional claims fell flat, involving only “routine, conventional functions of a computer and server.” Under Alice, this patent is as good as gone.
What about the other patents MyMedicalRecords mentioned in its demand letters and lawsuits? Those—all similar to the recently invalidated one—are in a precarious position right now. This recent decision sets a strong precedent that should make the company think twice about going after any other healthcare providers, who now have strong ammunition to fight back against infringement claims.
This is great news, but it only comes after the initiation of a lawsuit against some deep-pocketed defendants who had the ability to fight back. This is a luxury that many recipients of MyMedicalRecords’ letters simply don’t have. For that reason, strong patent reform is critical. We need a faster, cheaper way of challenging broad, vague, heavily abused patents like this—and we need to make sure they don’t get issued in the first place.
- 1. The actual text is as bad: “MMR’s Patent Portfolio covers a broad range of ways to maintain and manage patients’ health information, such that if you are communicating health information to patients, including all or a part of such patients’ medical records by means such as a telephone, facsimile, electronically or via a web-based portal, it is likely that you are or will be infringing upon MMR’s Patent Portfolio.”